United Residential Props., L.P. v. Theis

• Decision Date: 21 August 2012
• Docket Number: No. 14–11–00330–CV.,14–11–00330–CV.
• Parties: UNITED RESIDENTIAL PROPERTIES, L.P., William Maxwell and Tiffany Tallent, Appellants v. Tom and Dwana THEIS, Appellees.
• Court: Texas Court of Appeals

378 S.W.3d 552

UNITED RESIDENTIAL PROPERTIES, L.P., William Maxwell and Tiffany Tallent, Appellants

v.Tom and Dwana THEIS, Appellees.

No. 14–11–00330–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 21, 2012.

William Topp Maxwell, Houston, TX, for Appellants.

Josef Franz Buenker, Houston, TX, for Appellees.

Panel consists of Justices BOYCE, CHRISTOPHER, and JAMISON.

OPINION

WILLIAM J. BOYCE, Justice.

Tom and Dwana Theis sued United Residential Properties, L.P. (URP), William Maxwell, and Tiffany Tallent (collectively, Appellants) for fraud and deceptive trade practices arising out of the Theises' purchase of a mold-infested manufactured home from URP.

After a bench trial, the court signed a final judgment in the Theises' favor. Appellants challenge the trial court's judgment in ten issues, arguing among other things that (1) the trial court lacked jurisdiction; (2) there is no evidence of an agency relationship between URP and the individual who made a misrepresentation to the Theises; and (3) the trial court erred by not awarding attorney's fees to Appellants.

We hold that the trial court had jurisdiction; there is no evidence of an agency relationship; and Appellants are not entitled to attorney's fees. Accordingly, we reverse and render judgment that the Theises take nothing.

Background

Nelda Enriquez owned and lived in a manufactured home, but she vacated the home after she and her daughter became sick. Enriquez allowed the home to be foreclosed because “the home was molded and it was uninhabitable.” URP purchased the home from Enriquez's mortgagee, but the home remained on Enriquez's property. Enriquez testified that a man named Todd McCarty came to her property and said “he worked for United Realty or United Properties or something to that sort. He gave me a card, and he was bringing some people to show the home.” She told McCarty that the home was infested with mold, but “he said for me to shut up, that he would pay me to stay away from him when he brought people.” She alleged that he offered her $300 to refrain from telling anyone the home had mold.

Tom Theis testified that he became familiar with URP when Dwana responded to an ad in the paper. The Theises met with McCarty, who gave Tom a business card that stated, “United Residential Properties, Todd McCarty.” McCarty took the Theises to look at the manufactured home Enriquez had owned. McCarty gave the price and “kept saying [there] wasn't anything wrong with the house.” Tom noticed some “black stuff” inside the home but thought it was just dirt, so he did not ask McCarty about it.

The Theises purchased the house from URP in July 2005. When Tom met with Enriquez to arrange for the home to be moved from her property, Enriquez told him that the house had mold. After discovering mold in the home, the Theises sued URP, Maxwell, and Tallent. The Theises alleged in their live pleading that McCarty was an employee of URP, and that URP, Maxwell, and Tallent were liable for breach of contract, fraud, and false representations and unconscionable conduct under the Deceptive Trade Practices—Consumer Protection Act, Tex. Bus. & Com.Code Ann. §§ 17.41–17.63 (Vernon 2011) (DTPA).

The trial court signed findings of fact and conclusions of law, in which it determined that Appellants were liable for fraud, false and misleading representations under the DTPA, and unconscionable conduct under the DTPA. The trial court signed a final judgment in favor of the Theises finding Appellants jointly and severally liable for economic damages of $45,000, additional damages of $67,500 for intentional and unconscionable conduct, attorney's fees of $25,000, and additional post-judgment and appellate attorney's fees. ¹

Jurisdiction

In their first and second issues, Appellants argue that the trial court lacked subject matter jurisdiction because (1) the court dismissed the case and then reinstated it after the court's plenary power expired; and (2) the Theises failed to exhaust administrative remedies required under the primary and exclusive jurisdiction doctrines.

I. Jurisdiction to Reinstate

On October 30, 2006, the trial court dismissed the Theises' suit for want of prosecution. The Theises' counsel at the time, Charles Heard, mailed to the court a verified motion to reinstate on November 30, 2006; it was received on December 4, 2006.² The Theises concede that Heard's motion was filed more than 30 days after the trial court signed the dismissal order.

Generally, a motion to reinstate must be filed within 30 days of the trial court's dismissal. SeeTex.R. Civ. P. 165a(3). This deadline is jurisdictional, and a trial court loses jurisdiction to reinstate a dismissed case after the deadline. See, e.g., Walker v. Harrison, 597 S.W.2d 913, 915 (Tex.1980) (“This court has repeatedly held that the time limits provided in rule 165a are mandatory and jurisdictional and that orders of reinstatement entered after their expiration are void.”).

Nonetheless, the trial court reinstated the case on December 29, 2006. Appellants did not immediately complain about the reinstatement, and the case proceeded to trial on the merits in February 2011. The trial court signed its final judgment on March 18, 2011. On April 12, 2011, Appellants filed a plea to the jurisdiction and alternative motion for new trial raising the alleged jurisdictional defect concerning the trial court's 2006 reinstatement of the case. The Theises responded by filing on May 13, 2011 a “motion to extend postjudgment deadlines” under Texas Rule of Civil Procedure 306a(4)-(5) and affidavits from Tom, Dwana, and Heard. The trial court denied Appellants' plea to the jurisdiction and motion for new trial in an order signed on May 27, 2011. The trial court did not expressly rule on the Theises' motion; it scratched out the portions of the order submitted by the Theises reciting that they did not receive actual notice of the dismissal order until November 30, 2006.³

Rule 165a(3) states that a motion to reinstate must be filed “within 30 days after the order of dismissal is signed or within the period provided by Rule 306a.” Tex.R. Civ. P. 165a(3). Rule 306a provides:

1. Beginning of periods. The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules ... for filing in the trial court the various documents that these rules authorize a party to file within such periods including ... motions to reinstate a case dismissed for want of prosecution....

* * *

4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.

5. Motion, notice and hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.

Tex.R. Civ. P. 306a. A properly filed and granted motion under Rule 306a(5) “restarts the postjudgment timetable.” Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 541 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (emphasis omitted).

When a trial court does not make findings on the Rule 306a motion, as here, we will infer necessary findings in favor of the trial court's judgment unless the record contains no evidence to support the finding or conclusive evidence negating the finding. See In re Lynd Co., 195 S.W.3d 682, 686 (Tex.2006). The Theises' motion and affidavits filed in May 2011 in response to Appellants' April 2011 plea to the jurisdiction establish that Heard or the Theises first obtained notice of the trial court's dismissal order on November 30, 2006.⁴ Appellants do not contend otherwise.

Instead, Appellants argue that the trial court could not retroactively extend the postjudgment deadlines more than four years after the trial court allegedly lost jurisdiction. We disagree. “The rules do not set a deadline for filing a motion under Rule 306a(5).... Rule 306a(5) does not prohibit a motion from being filed at any time within the trial court's plenary jurisdiction measured from the date determined under Rule 306a(4).... Rule 306a simply imposes no deadline, and none can be added by decision, other than the deadline of the expiration of the trial court's jurisdiction.” John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741 (Tex.2001) (per curiam).

In John v. Marshall Health Services, Inc., the Texas Supreme Court held that a Rule 306a motion was timely filed under the following facts: The trial court signed its judgment on September 8, 1999; John obtained actual notice of the judgment on September 30; he filed a motion for new trial on October 13—more than 30 days after September 8, but within 30 days of obtaining actual notice on September 30; ⁵ and John filed a Rule 306a motion on December 10. See id. at 739–40. The supreme court held that John's notice of appeal filed on December 13 was timely because the motion for new trial was not overruled by operation of law until December 14—75 days after September 30, the date on which John obtained actual notice of the judgment. See id. at 741. Therefore, John's motion for new trial extended the trial court's jurisdiction even though his Rule 306a motion was filed at a time when the trial court would not have had...